Sunshine Villa

344 NLRB No. 88 Regent Assisted Living, Inc. d/b/a Sunshine Villa and Service Employees International Union, Local 415, Service Employees International Union, AFL–CIO. Case 32–CA–21856–1 May 27, 2005 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER This is a refusal-to-bargain case in which the Respon- dent is contesting the Union’s certification as bargaining representative in the underlying representation proceed- ing. Pursuant to a charge filed on January 26, 2005, the General Counsel issued the complaint on March 14, 2005, alleging that the Respondent has violated Section 8(a)(1) and (5) of the Act by refusing the Union’s request to bargain following the Union’s certification in Case 32–RC–5262. (Official notice is taken of the “record” in the representation proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and denying in part the allegations in the complaint, and asserting affirmative defenses. On April 4, 2005, the General Counsel filed with the Board a Motion for Summary Judgment. On April 6, 2005, the Board issued an order transferring the proceed- ing to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed a response, and the General Counsel filed a reply. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain, but con- tends that the Union’s certification is invalid because the Board erred in overruling the objections to the election in the representation proceeding. The Respondent’s af- firmative defenses essentially argue that the Union was improperly certified, and therefore the Respondent is under no legal duty to recognize or bargain with the Un- ion. All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to ad- duce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special cir- cumstances that would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this un- fair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).1 Accord- ingly, we grant the Motion for Summary Judgment.2 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, an Oregon cor- poration with its principal office in Portland, Oregon, has been engaged in the operation of assisted living residen- tial facilities in the States of Washington, Oregon, Cali- fornia, Idaho, Utah, and Arizona. During the 12-month period preceding issuance of the complaint, the Respondent, in the course and conduct of its business operations, derived gross revenues in excess of $250, 000, and during the same period, in the course and conduct of its business operations inside the State of California, the Respondent purchased and received goods valued in excess of $5000 that originated from outside the State of California.3 We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that Service Employees International Union, Local 415, Service Employees International Un- ion, AFL–CIO (the Union) is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification At all material times prior to October 1, 2004, Renais- sance Senior Living Management, Inc. (Renaissance) was engaged in the operation of an assisted living resi- dential facility located at 80 Front Street, Santa Cruz, California (the facility). At all material times prior to October 1, 2004, the fol- lowing employees (the Renaissance unit) constituted a 1 Member Schaumber did not participate in the underlying represen- tation proceeding. He agrees, however, that the Respondent has not raised any new matters or special circumstances warranting a hearing in this proceeding or reconsideration of the decision in the representation proceeding, and therefore that summary judgment is appropriate. 2 Thus, we deny the Respondent’s requests that the complaint be dis- missed, that the Union’s certification be revoked, that the underlying representation petition filed in Case 32–RC–5262 be dismissed with prejudice, and that the Respondent be awarded costs and attorneys’ fees. 3 The Respondent’s answer denies the allegation, set forth in para- graph 2(c) of the complaint, that during the 12-month period preceding issuance of the complaint, the Respondent received in excess of $5000 in federal Medicare and/or Medicaid money. In view of the Respon- dent’s admissions of the other jurisdictional facts alleged in the com- plaint, as found above, the Respondent’s denial of complaint paragraph 2(c) does not raise an issue warranting a hearing nor affect our finding that the Respondent is an employer engaged in commerce within the meaning of the Act. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time service and mainte- nance employees employed by Renaissance at the Fa- cility; excluding all managerial and administrative em- ployees, including but not limited to activities director, marketing manager, housekeeping supervisor and ad- ministrative assistant, all professional employees, Reg- istered Nurses (RNs), Licensed Vocational Nurses (LVNs), confidential employees, receptionists, office clerical employees, all other employees, guards, and supervisors as defined in the Act. Following the election held July 9, 2004, in Case 32– RC–5262, the Union was certified on October 29, 2004, as the exclusive collective-bargaining representative of the employees in the above-described Renaissance unit. At all times after July 9, 2004, the Union, by virtue of Section 9(a) of the Act, was the exclusive representative of the employees in the Renaissance unit for the purposes of collective bargaining. On or about October 1, 2004, the Respondent assumed the operation of the facility from Renaissance, and since that date the Respondent has continued to operate the facility in basically unchanged form and has employed as a majority of its employees at the facility individuals who were previously employees of Renaissance in the Renaissance unit. Based on these operations, the Re- spondent has continued the employing entity and is a successor to Renaissance with respect to any bargaining obligation on the part of Renaissance arising from the certification in Case 32–RC–5262. At all material times since October 1, 2004, the em- ployees in the following unit (the Respondent unit) have constituted a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time service and mainte- nance employees employed by Respondent at the Facil- ity; excluding all managerial and administrative em- ployees, including but not limited to activities director, marketing manager, housekeeping supervisor and ad- ministrative assistant, all professional employees, Reg- istered Nurses (RNs), Licensed Vocational Nurses (LVNs), confidential employees, receptionists, office clerical employees, all other employees, guards, and supervisors as defined in the Act. At all material times since October 1, 2004, the Union, by virtue of Section 9(a) of the Act and in light of the successorship circumstances set forth above, has been the exclusive representative of the employees in the Respon- dent unit for the purposes of collective bargaining. B. Refusal to Bargain On or about November 11 and 19, and December 18, 2004, the Union, by letter, requested that the Respondent recognize and bargain with it as the exclusive collective- bargaining representative of the Respondent unit. Since December 23, 2004, the Respondent has failed and re- fused to recognize and bargain with the Union. We find that this failure and refusal constitutes an unlawful re- fusal to bargain in violation of Section 8(a)(1) and (5) of the Act. CONCLUSION OF LAW By failing and refusing since December 23, 2004, to bargain with the Union as the exclusive collective- bargaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(1) and (5) of the Act, we shall order it to cease and desist, to bargain on request with the Union and, if an understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of the certifi- cation as beginning the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, Regent Assisted Living, Inc. d/b/a Sunshine Villa, Santa Cruz, California, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Service Employees Inter- national Union, Local 415, Service Employees Interna- tional Union, AFL–CIO, as the exclusive bargaining rep- resentative of the employees in the bargaining unit. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. SUNSHINE VILLA 3 (a) On request, bargain with the Union as the exclusive representative of the employees in the following appro- priate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time service and mainte- nance employees employed by Respondent at the Facil- ity; excluding all managerial and administrative em- ployees, including but not limited to activities director, marketing manager, housekeeping supervisor and ad- ministrative assistant, all professional employees, Reg- istered Nurses (RNs), Licensed Vocational Nurses (LVNs), confidential employees, receptionists, office clerical employees, all other employees, guards, and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Santa Cruz, California, copies of the at- tached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 32, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil- ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since December 23, 2004. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- 4 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” testing to the steps that the Respondent has taken to com- ply. APPENDIX NOTICE TO EMPLOYEES Posted by Order of the National Labor Relations Board An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT refuse to bargain with Service Employ- ees International Union, Local 415, Service Employees International Union, AFL–CIO, as the exclusive repre- sentative of the employees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bar- gaining unit: All full-time and regular part-time service and mainte- nance employees employed by us at our Facility; ex- cluding all managerial and administrative employees, including but not limited to activities director, market- ing manager, housekeeping supervisor and administra- tive assistant, all professional employees, Registered Nurses (RNs), Licensed Vocational Nurses (LVNs), confidential employees, receptionists, office clerical employees, all other employees, guards, and supervi- sors as defined in the Act. REGENT ASSISTED LIVING, INC. D/B/A SUNSHINE VILLA